The Unusual History of 18 USC 922(g)(5), Criminalizing Noncitizen Posession of a Firearm

Under 18 USC § 922(g)(5), it is a crime for undocumented migrants or nonimmigrants to be in possession of a firearm. Here’s the formal statutory language:

“(g) It shall be unlawful for any person—… (5) who, being an alien— (A) is illegally or unlawfully in the United States; or (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)))… to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

I cover this statutory provision in my Crimmigration course, exploring it through the SCOTUS case of Rehaif.

This week, I learned for the first time about the history of this statutory provision, courtesy of former Federal Public Defendant and current law professor Brandon E. Beck (Texas Tech).

The provision dates to the 1968 Omnibus Crime Control and Safe Streets Act. As explored by William J. Vizzard in his article The Gun Control Act of 1968, 18 St. Louis U. Pub. L. Rev. 79 (1999), Senator Thomas Dodd (D-CT) was a significant driver of the passage of this act. He’d been working on federal gun control laws for years in advance of this legislation.

But the specific inclusion of a law restricting non-citizens from possessing firearms came from Senator Russell Long (D-LA) who proposed Title VII as a late addition to the omnibus bill. As Vizzard writes:

“At the last minute, the Senate inserted Title VII into its version of the Omnibus Act by voice vote. Proposed by Senator Russell Long (D-LA) and considered without hearings, the bill suffered from poor drafting which would bedevil its enforcers and confound the courts. Title VII addressed simple firearm possession for the first time at the federal level. The bill included a finding that strongly implied such intent, and Senator Long’s statements on the Senate floor likewise support such an interpretation. Apparently, a bill intended to significantly alter federal policy became law with little analysis largely as a political favor to improve its author’s image as tough on crime.”

So, why the beef with noncitizens?

The answer, according to Beck, might just be Lee Harvey Oswald. Oswald assassinated President John F. Kennedy in 1963. Four years before that fateful event, Harvey presented himself at the American Embassy in Russia in order to “dissolve his American citizenship.” Oswald was not allowed to renounce his citizenship, but it’s clear he intended to.

Moreover, the fear of non-citizen gun-holders ramped up in 1968 when Jordanian citizen Sirhan Sirhan assassinated presidential candidate (and JFK brother) Robert F. Kennedy.  As Vizzard writes, the U.S. House of Representatives passed the 1968 Omnibus Crime Control and Safe Streets Act, inlcuding Sen. Long’s Title VII, the day after RFK’s assassination.

The legislative history gets a little complicated from there. Ultimately, Title VII of the Omnibus Act became part of the Gun Control Act of 1968.

Absolutely fascinating.

-KitJ